Musadi Lal Garg & Ors. Vs State of Haryana & Anr.

The plaintiffs have filed the present Regular Second Appeal, assailing the judgment and decree dated 13.02.1999 passed by the Court of learned Additional District Judge, Chandigarh (hereinafter referred to as “First Appellate Court”) , whereby an appeal preferred by the respondentsdefendants/Haryana Agro Industries Corporation Ltd. (for short “the Corporation”) was accepted while dismissing the suit of the plaintiffs, thereby reversing the judgment and decree dated 30.04.1994 passed by the Court of learned Sub Judge II Class, Chandigarh (hereinafter referred to as “trial Court”) , which had decreed the suit for declaration and mandatory injunction.

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[2] The trial Court record has been perused. For the sake of convenience, the parties are being referred to as per their status in the Civil Suit.

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FACTS

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[3] The case of the plaintiffs, as set up in the plaint, is that plaintiff Nos.1, 6, 7, 8 & 9 were appointed as Accountants; they joined as such on 20.04.1977, 06.05.1980, 28.07.1980, 06.05.1980 and 06.05.1980 in the pay scale of Rs. 225-500/- plus 30/- as special pay respectively, whereas plaintiff Nos. 2, 5 & 10 were appointed as Accounts Clerk in the defendantCorporation; thereafter they were appointed as Assistant Accountant and then as Accountant in the pay scale of Rs.225-500/- plus 30/- as Special Pay on 07.03.1978, 29.05.1978, 01.07.1976 and 28.08.1980, respectively. All the plaintiffs except plaintiff Nos. 4 & 5 who further got promoted as Accounts Officers in the year 1982 and 1980 respectively, were working as Accountants. It was further pleaded that the Govt. of Haryana revised the pay scales of its employees w.e.f. 01.02.1969 vide notification dated 12.06.1969 and accordingly, the defendant-Corporation constituted a SubCommittee to review the pay scales of their employees, wherein it was suggested that the pay scale for the post of Accountant be brought at par with the scale of Subordinate Accounts Service (SAS) admissible to the Haryana Govt. employees and in view of the report prepared therein, on 12.02.1970, the Board of Directors sent the matter to the then Chairman of the defendant-Corporation. It was thus pleaded that in terms of order dated 13.02.1970 of the Chairman, the plaintiffs were to be given the pay scales at par with that of the Haryana State Government, however, the Accounts

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Officer of the defendant-Corporation misinterpreted the said order and those comments were also accepted by the then Managing Director of the defendant-Corporation and accordingly, the pay scale of Rs. 225-500/- with special pay of Rs. 30/- was given to the Accountants/now plaintiffs; although as per revised pay scales they were allegedly entitled to the pay scale of Rs. 300-600 in terms of order dated 13.02.1970.

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[3.1] Further, it was pleaded that vide notification dated 29.02.1980 issued by the Govt. of Haryana, the pay scales of its employees were further revised w.e.f. 01.04.1979 whereby the pay scales of Accountant / Senior Auditor / Auditor were revised from Rs. 300-600 to Rs. 700-1250 for SAS w.e.f. 01.04.1979 besides Special Pay of Rs. 50/- per month w.e.f. 01.02.1981 alongwith selection grade. The defendant-Corporation also revised the pay scales of its employees vide orders dated 18.08.1980 / 08.08.1980 / 01.01.1981 and accordingly, the plaintiffs were given the pay scale of Rs. 600-1100/- instead of Rs. 700-1250/- which was at par with the SAS qualified Accountant.

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[3.2] Furthermore, it was pleaded that after the revision of pay scale, an anomaly crept up qua the plaintiffs that pay scale given to the Accountants (non-SAS) was given as Rs. 600-1100, whereas the plaintiffs were entitled to the pay scale of Rs. 700-1250 w.e.f. 01.04.1979 with a special pay of Rs. 50 per month w.e.f. 01.02.1981.

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[3.3] It was also pleaded that again, the State of Haryana revised the pay scale of its employees w.e.f. 01.01.1986, placing the pay scale from Rs.700-1250 to Rs. 1640-2900 with special pay of Rs. 100/- and consequently, the defendant-Corporation revised pay scale of its employees

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w.e.f. 01.01.1986 from Rs. 600-1100 to 1600-2660, whereas the plaintiffs were entitled for the revised pay scale of Rs. 1640-2900 with special pay of Rs.100/-. Even after filing representations to the defendant-Corporation, no action was taken; thereby compelled the plaintiffs to institute the suit in hand.

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[4] Upon notice of the suit, a joint written statement was filed on behalf of the respondents while contesting the pleadings therein and on merits, the dismissal of the suit was prayed.

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[5] Since the parties were at variance, the learned trial Court framed the following issues:-

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“(1) Whether plaintiffs are entitled for the pay scale 300-600 w.e.f. 1.2.69, revised pay scale of 700-1250 w.e.f. 1.4.79 and special pay of Rs. 50/- with benefit of selection grade w.e.f. 1.2.81 on the grounds as alleged ? OPP

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(2) Whether plaintiffs are entitled to revised pay scale of 1640-2900 with special pay of Rs. 100/- from 1.1.86 on the grounds alleged? OPP

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(3) Whether suit of the plaintiffs is not maintainable in the present form?OPD

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(4) Whether suit is bad for mis-joinder and non-joinder of parties? If so, to what effect? OPD

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(5) Whether suit is barred by limitation?OPD

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(6) Relief. ”

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[6] On appraisal of evidence led by the parties, the learned trial Court, vide its judgment and decree dated 30.04.1994, decreed the suit of the plaintiffs as follows:-

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“ RELIEF

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13. In view of my findings on the above issues, the suit of the plaintiffs is decreed, for a declaration to the effect that they are entitled for pay scale of Rs. 300-600 w.e.f. 1.2.69 and revised

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pay scales of Rs. 700-1250 w.e.f. 1.4.79 and special pay of Rs. 50/- per month with benefit of selection grade w.e.f. 1.2.81 and revised pay scales of Rs. 1640-2900 with special pay of Rs. 100/per month w.e.f. 1.1.1986. The defendants are directed to pay the arrears of pay which are due to the plaintiffs for a period of three years and two months before the filing of the suit i.e. 25.05.1988 alongwith any other benefits to which the plaintiffs may be found entitled during the same period after removal of the pay anomaly. There is no order as to costs. Decree sheet be prepared accordingly.”

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[7] Aggrieved by the judgment and decree dated 30.04.1994 passed by the learned trial Court, both the plaintiffs as well as defendants preferred separate first appeals. The appeal filed by the plaintiffs, seeking a decree for the entire claim, came to be dismissed, whereas the appeal preferred by the respondents-defendants/Corporation was allowed by the learned First Appellate Court vide common judgment and decree dated 13.02.1999. Consequently, the judgment and decree of the learned trial Court was set aside to the extent challenged by the respondents-defendants, and the suit of the plaintiffs was dismissed in its entirety as being barred by limitation.

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CONTENTION(S):

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ON BEHALF OF THE APPELLANTS-PLAINTIFFS

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[8] Learned counsel for the appellant-plaintiffs contended that despite being entitled to pay scales at par with the employees of the Government of Haryana, including the revisions made with effect from 01.02.1969, 01.04.1979 and 01.01.1986, the defendant-Corporation failed to extend the said benefit to the plaintiffs. It was submitted that the plaintiffs had been persistently pursuing their claim by submitting representations to the defendant-Corporation, which ultimately came to be rejected vide

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communication dated 30.09.1987 (Ex. P-51). Learned counsel thus contends that the cause of action arose only upon such final rejection and, therefore, the suit instituted on 25.05.1988 was well within the prescribed period of limitation. It was submitted that the learned First Appellate Court failed to appreciate that the relief has been limited for 38 months, thus the suit cannot be said to be out of limitation. It was further argued that the denial of the appropriate pay scales gives rise to a continuing and recurring cause of action, as the plaintiffs continue to receive salary in a lower pay scale every month. In support of this contention, reliance was placed upon the judgment of this Court in Saroj Kumari v. State of Punjab , reported as 1998 (3) SCT 664 . Relevant paragraphs of the said judgment are reproduced hereunder:

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9 . After hearing learned counsel for the parties on this point we are of the view that in case where a person invokes the jurisdiction of this Court under Article 226 of the Constitution of India for fixation of his pay under relevant rules/instructions or even on the basis of a judgment of a competent Court, the question of delay and laches would not come in as it would be a case of a continuing wrong and every month the person is paid the salary which according to him is not in accordance with the relevant rules and instructions a fresh cause of action would arise every month. Such a case is not a case of one time action like the case of termination or dismissal from service. As observed by the apex Court in M.R. Gupta's case (supra) that the Court while granting relief regarding the payment of arrears may apply law of limitation. Since a civil suit would be maintainable for realising arrears of three years and two months, the writ Court would be justified in restricting the payment of arrears to three years and two months prior to the filing of the writ petition.

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10. We do not agree with the submission of the learned Advocate General, Punjab, that the writ Court should decline the relief to a person who is claiming correct fixation of his pay in accordance with the relevant rules and instructions merely because he has been negligent in approaching the court. If such a person can file a civil suit for the correct fixation of his pay where he can further claim arrears upto a period of three years and two months prior to the filing of the civil suit, there is no reason why such relief should be denied by a writ Court. Apart from the above, it may be noticed that in such cases as the present one where only fixation of pay is sought and arrears are claimed, rights of third party do not intervene during the period the person may not have approached the Court. The correct fixation of pay and the payment of arrears do not affect third party's right. This was also so observed by the Division Bench in Rattan Singh's case which has been quoted above, on the basis of which the argument was raised by the learned Advocate General, Punjab.

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11. For the foregoing reasons we are of the view that in cases where only fixation of pay according to the relevant rules/instructions or a judgment is prayed for, the writ petition cannot be dismissed at the threshold on the ground of delay and laches but the payment of arrears can be restricted to a reasonable period. Three years and two months would be considered a reasonable period as that is the period for which a person can ask for the payment of arrears before a civil Court.

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No other point has been urged.

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[9] On the other hand, learned counsel for the respondentsdefendants submits that the learned First Appellate Court having appreciated the entire pleadings and evidence available on record, rightly dismissed the suit of plaintiffs.

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DISCUSSION AND REASONING

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[10] After hearing learned counsel for the parties and having gone through the paper-book / records, I am unable to find substance in the submission(s) made on behalf of the appellants-plaintiffs.

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[11] In the present case, the Chairman of the defendant-Corporation, being the competent authority, had taken a decision with regard to the plaintiffs' claim for revised pay scales on 13.02.1970, which was thereafter stated to be misinterpreted by the Accounts Officer on 14.04.1970 vide document Ex P.29; however there is nothing on record to establish that the said order was ever communicated to the plaintiffs. Upon acquiring knowledge of the same, the plaintiffs diligently and consistently pursued their claim by submitting representations to the defendant-Corporation, which ultimately came to be rejected vide communication dated 30.09.1987 (Ex. P-51). The cause of action, therefore, crystallized only upon such final rejection, rendering the suit instituted on 25.05.1988 well within the prescribed period of limitation. Even otherwise, the claim in the present case pertains to fixation of the correct pay scales, giving rise to a continuing and recurring cause of action, as the plaintiffs continued to receive salary in an allegedly lower pay scale every month. It is well settled that in matters relating to erroneous pay fixation, an employee is entitled to seek correction of pay, though the claim for arrears is ordinarily confined to three years and two months preceding the institution of the suit. Since, in the present case also, the learned trial Court has restricted the monetary relief accordingly, the suit cannot be held to be barred by limitation. Consequently, the finding recorded by the learned First Appellate Court on the issue of limitation is

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unsustainable and thereby reversed.

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[12] Further, the respondents-plaintiffs, being Non-SAS Accountants, were rightly extended the pay scales applicable to that category under the Haryana Government and could not claim parity with SAS Accountants, who constituted a separate cadre requiring qualification in the SAS Examination. It was noticed that under the Haryana Government, with effect from 01.02.1969, SAS Accountants were placed in the pay scale of Rs. 300–600, whereas Non-SAS Accountants were granted the pay scale of Rs. 225–500. Likewise, with effect from 01.04.1979, the pay scales were revised to Rs.700–1250 for SAS Accountants and Rs. 600–1100 for NonSAS Accountants, and with effect from 01.01.1986, to Rs.1640–2900 and Rs.1600–2660, respectively. The consistent distinction maintained in the pay structure over successive revisions clearly reflected a conscious policy decision to treat the two categories separately. In the absence of any material establishing that the respondents-plaintiffs had qualified the SAS Examination or otherwise belonged to the category of SAS Accountants, the learned First Appellate Court rightly concluded that they had no legal basis to claim the higher pay scale admissible to SAS Accountants.

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[13] Further this Court finds itself in complete agreement with the reasoning adopted by the learned First Appellate Court in holding that the fixation of pay scales and equation of posts lie within the exclusive province of the employer and the executive, assisted by expert bodies such as the Pay Commission, and that the Civil Court cannot undertake the exercise of equating different posts or directing grant of a particular pay scale solely on the basis of a claim of parity. In view of the above, reliance was rightly

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placed upon the judgment rendered by this Court in the case of S.K Bishnoi and others v. State of Haryana reported as 1993 (4) SCT 127, wherein this Court while relying upon the law laid down in the case of State of U.P. v. J. P. Chaurasia, AIR 1989 Supreme Court 19 held as under:

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“……..The learned single Judge hastened to conclude that the posts of Engineer-in-Chief and the Additional Chief Electoral Officer were equal in rank and status with same responsibilities and that the incumbents of both these posts were Heads of their respective Departments and performed supervisory and technical duties at the highest departmental level in their respective spheres. He accordingly directed that the petitioner be allowed the same pay scale as was allowed to the Engineer-in-Chief, Haryana P.W.D. The view taken by the learned single Judge, with respect, cannot be sustained and is overruled. The equation of posts or equation of pay scale must be left to the executive Government. It must be determined by expert bodies like Pay Commission. They would be the best judge to evaluate the nature of duties and responsibilities of the posts. If there is any such determination by a Commission or a Committee, the Court should normally accept it. The Court should not try to tinker with such equivalent unless it is shown that it was made with extraneous consideration. (See in this connection, State of U.P. v. J. P. Chaurasia, AIR 1989 Supreme Court 19). It was for the Government to decide whether the post of Additional Chief Electoral Officer should be equated with that of the Engineer-in-Chief, Haryana P.W.D. The Court could not take upon itself the responsibility of equating these two posts, which was the exclusive prerogative of the executive wing of the Government, which too has to be assisted by expert bodies before it comes to the conclusion of equating various posts for the purpose of fixation of pay scales.

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[13.1] The aforesaid view also stands fortified by the recent judgment of State of Uttar Pradesh v. Virendra Bahadur Katheria , reported as 2024

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INSC 524 , wherein the Hon’ble Supreme Court reiterated that prescription of pay scales and equation of posts are matters falling within the exclusive domain of the executive, to be determined on the basis of recommendations of expert bodies such as the Pay Commission, and that judicial interference in such policy decisions is warranted only in exceptional cases where the action is shown to be arbitrary or violative of Articles 14 and 16 of the Constitution. The relevant observations are reproduced hereunder:

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“ 53. It needs no emphasis that prescription of pay scale for a post entails Policy decision based upon the recommendations of an expert body like Pay Commission. All that the State is obligated to ensure is that the pay structure of a promotional or higher post is not lower than the feeder cadre. Similarly, pay parity cannot be claimed as an indefeasible enforceable right save and except where the Competent Authority has taken a conscious decision to equate two posts notwithstanding their different nomenclature or distinct qualifications. Incidental grant of same pay scale to two or more posts, without any express equation amongst such posts, cannot be termed as an anomaly in a pay scale of a nature which can be said to have infringed the right to equality under Article 16 of our Constitution.

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54. Equally well settled is that the creation, merger, de-merger or amalgamation of cadres within a service to bring efficacy or in the administrative exigencies, is the State's prerogative. The Court in exercise of its power of judicial review would sparingly interfere in such a policy decision, unless it is found to have brazenly offended Articles 14 and 16 of the Constitution

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[14] In view of the discussion made hereinabove, I do not find any illegality or perversity with the findings of the fact recorded by the learned First Appellate Court, which are based on appreciation of oral and

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documentary evidence. No ground for interference is made out much less involvement of any substantial question of law.

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[15] Ex consequenti , there is no merit in the appeal and is, hereby,

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dismissed .